19-005216PL Department Of Health, Board Of Nursing vs. Janine Marie Leonard, R.N. Status: Closed Recommended Order on Friday, January 31, 2020.

Summary: Respondent is guilty of misappropriating hydromorphone, morphine, and supplies from the hospital where she worked the night shift; also guilty of the related charge of possessing/attempting to possess controlled substances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING ,

Petitioner ,

Case No. 19 - 5216PL

vs.

JANINE MARIE LEONARD, R.N. ,

Respondent .

/

RECOMMENDED ORDER

A disputed - fact evidentiary hearing was held on December 5,

2019, before Elizabeth W. McArthur, Administrative Law Judge with

the Division of Administrative Hearings (DOAH), by video

teleconference at sites in Sarasota and Tallahassee, Florida.

APPEARANCES

For Petit ioner: Kimberly Lauren Marshall, Esquire

Gerald C. Henley, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Flo rida 32399

For Respondent: Sara A. Bazzigaluppi, Esquire

Chapman Law Group

6841 Energy Court

Sarasota, Florida 34240

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent

misappropria ted hydromorphone, morphine, a syringe, a needle,

and/or tubing from her employer and whether Respondent possessed

or attempted to possess controlled substances for illegitimate

purposes, in violation of the statutes and rule charged in the

Administrative Complaint; and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On March 7, 2018, the Department of Health (Department or

Petitioner) filed a two - count Administrative Complaint before the

Board of Nursing (Board) against Janine Marie Leonard, R.N.

(Respondent). The first count alleged that Respondent engaged in

unprofessional conduct in violation of section 464.018(1)(h),

Florida Statutes (2017), 1/ as defined in Florida Administrative

Code Rule 64B9 - 8.005(2), by misappropriating drugs, supplie s,

and/or equipment. The second count alleged that Respondent

violated section 464.018(1)(i) by engaging or attempting to

engage in the possession, sale, or distribution of controlled

substances for illegitimate purposes.

In an Election of Rights form and an Answer to the

Administrative Complaint, Respondent timely disputed the

allegations and requested a disputed - fact hearing. The

Department transmitted the matter to DOAH on October 1, 2019, for

the assignment of an administrative law judge to conduct th e

requested hearing.

Pursuant to the joint request of the parties, the hearing

was set for December 5 and 6, 2019, by video teleconference with

sites in Sarasota and Tallahassee.

Prior to the hearing, the parties filed a Joint Pre - hearing

Stipulation in wh ich they stipulated to several facts. The

stipulated facts have been incorporated in the Findings of Fact

below to the extent relevant.

One day before the hearing, Respondent filed a motion in

limine and motion for costs. The motions were addressed at th e

outset of the hearing, and were denied for reasons set forth in

the hearing record.

At the hearing, Petitioner presented the testimony of the

following witnesses: Marlena (Joie) Monroe, R.N.; Tracey Taylor,

R.N.; Mary Kay Butterfield, R.N.; Dawn Beljin, R.N.; and

Joseph Pietranton, R.Ph. Petitioner's Exhibits 1, 3 through 6,

10, and 11 were admitted into evidence. 2/ Petitioner provided

redacted and unredacted sets of its exhibits, with the redacted

set obliterating confidential information. The unreda cted set of

exhibits will be placed in a sealed envelope labelled to indicate

the confidential nature of the contents.

Respondent testified on her own behalf and also presented

the testimony of Crystal Oliver, C.N.A. Respondent's Exhibit 2

was admitted into evidence.

The evidentiary hearing was completed in one day. At the

conclusion, the parties requested 20 days from the filing of the

hearing transcript to submit proposed recommended orders (PROs),

which was granted. 3/ The one - volume hearing Transcr ipt was filed

December 13, 2019. The parties timely filed their PROs, which

have been carefully considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1 . The Department has regulatory jurisdiction over the

practice of nursing pursuant to section 20.43 and chapters 456

and 464, Florida Statutes . In particular, the Department is

authorized to file and prosecute an administrative complaint

against a nurse after a probable cause panel (PCP) of the Board

determines there is probable cause t o suspect a licensee has

committed a disciplinable offense, and direction is given by the

PCP to the Department on the filing of an administrative

complaint .

2. At all times material to the allegations in the

Administrative Complaint, Respondent was lice nsed to practice

nursing in Florida as a registered nurse, having been issued

license number RN 9344420.

3. The allegations ar o se from an incident occurring while

Respondent worked at Regional Bayfront Health, a hospital in

Venice, Florida. Respondent wo rked the night shift, from

7:00 p.m. to 7:00 a.m.

4. On the night shift spanning September 28, 2017, to

September 29, 2017, Respondent worked as a floor nurse in "Two

North," which is the orthopedic and neurological postsurgical

unit.

5. The other floor nurse working the night shift with

Respondent in Two North was Marlena (often referred to by her

nickname, "Joie" or "Joei" ) Monroe, also a registered nurse.

6. The nurses' station for Two North was behind a long

counter facing the elevators, so that some one getting off an

elevator at Two North would be standing in front of the nurses'

station counter. Nurses and the unit secretary (who only worked

during the day shift) sat behind the counter when they were not

moving about in the unit.

7. Directly to the left of where the nurses sat behind the

nurses' station counter was the Two North "med room," where

medication and medical supplies were kept. During the night

shift, when the hospital's pharmacy was not open, controlled

substances such as opioids cou ld be accessed from two secure

AcuDose machines, which were locked and accessible only to nurses

with fingerprint and pass code input.

8. At some point during the night shift that began at

7:00 p.m. on September 28, 2017, and ended at 7:00 a.m. on

Septemb er 29, 2017, Ms. Monroe observed Respondent go into the

med room with a purple pouch about the size of a pencil bag.

(Respondent clarified that the purple pouch was not a pencil bag,

but the carrying pouch for her blood pressure cuff that she

usually had with her, among other personal items, in a large

cloth tote bag that she routinely brought to and from work).

9. Ms. Monroe observed Respondent take some glass vials out

of the purple pouch and put them in a sharps container. She

observed Respondent get needles and syringes off of the counter

and put them in the purple pouch. She then saw Respondent put

glass medication vials into the purple pouch. She observed

Respondent leave the med room and put the purple pouch into

Respon dent's tote bag .

10. Ms. M onroe's testimony was clear and credible regarding

what she observed. Respondent did not directly refute any part

of Ms. Monroe's eyewitness account, other than to generally deny

taking drugs and putting them in her bag. Respondent did not,

for example, deny that she took her purple pouch into the med

room. Indeed, she admitted that, although the purple pouch was

the carrying pouch for her blood pressure cuff, that night the

blood pressure cuff was not in her purple pouch. She did not

explain why the bl ood pressure cuff was removed from its carrying

pouch or why she brought the purple pouch in her tote bag to work

that night shift if not for carrying the blood pressure cuff.

11. Instead of directly refuting Ms. Monroe's eyewitness

account, Respondent a ttempted to dispute whether Ms. Monroe was

physically situated to see what she described. This attempt was

ineffective , and largely predicated o n mischaracteriz ations of

Ms. Monroe's testimony and other evidence . The credible evidence

established that Ms . Monroe was in a position to clearly observe

what she attested to. The med room was directly to the left of

where Ms. Monroe was sitting behind the nurses' station counter,

about ten feet away. The med room was brightly lit. Ms. Monroe

clearly describe d her direct line of sight from where she was

sitting into the med room, because the door, though closed, was

made of clear glass from the doorknob height up.

12. Respondent's description of the med room was quite

different from Ms. Monroe's description. For example, Respondent

described the med room as "probably three feet [wide] by five

feet [long]." (Tr. 169). Ms. Monroe testified that the med room

was five feet wide by 15 feet long. (Tr. 47). Considering

everything identified in the med rooms -- two AcuDose machines on

the left wall, which is the far wall from where the door opens; a

large locked medication bin housing bags of IV solution and other

prepared medication next to the AcuDose machines; a counter

against the back wall c urving around to the right side of the

room, with supply bins and areas for preparing medication, and a

sink at the counter's end against the right wall closest to where

the door opens -- Respondent's estimate could not poss ibly be

accurate. The locked machines and large bin o n the left side and

counter on the right side extend out from the walls, likely

taking up a minimum of two feet of the room's width, which would

leave, at most, one foot between machines and counters for people

to move around, using Respondent's estimate, which would be

impossibly narrow. Indeed, as Respondent admitted, "I'm not very

good as far as judging feet." (Tr. 168).

13. Their descriptions of the med room door were similarly

disparate. Respondent described a "vertical windowpane" in the

door, but was vague about the dimensions: "I don't -- I don't know

the dimensions. It's not very big. It's, I don't know, maybe a

foot - by - a - foot window, I guess. It could be a little bit bigger.

I'm not really sure." (Tr. 169). She gave that estimate after

adm itting she is not good at "judging feet" and right before she

estimated the med room dimensions as impossibly small.

14. Considering all of the credible evidence, Ms. Monroe's

clear descriptions of the med room and the nurses' station are

credited. Her t estimony was more credible and certain than

Respondent's vague descriptions and impossible estimates of

dimensions, which, to her credit, she acknowledged was not her

strength.

15. More than two years after the incident, Ms. Monroe did

not recall when dur ing the night shift she observed Respondent

put glass vials, needles, and syringes in her purple pouch and

then put her purple pouch in her tote bag. Ms. Monroe guessed

that it was sometime after midnight. It was certainly before

6:00 to 6:30 a.m. when t he day shift charge nurse, Tracey Taylor,

arrived.

16. Ms. Taylor testified that when she arrived on the

morning of September 29, 2017, Ms. Monroe told her what she had

observed. Ms. Taylor did not remember the exact words used by

Ms. Monroe, but said it was along the lines of "I saw her putting

stuff into her pencil bag." (Tr. 78). Ms. Taylor's written

statement dated September 29, 2017, was consistent with that

recollection: "This morning at 6:30 [a.m.], prior to receiving

report from the night shift nurse, it was brought to my attention

that Janine Leonard, a night shift RN, was observed putting vials

of medication s into her bag."

17. Ms. Taylor wanted to verify for herself what Ms. Monroe

told her before calling a house supervisor, so she looked in

Respondent's tote bag, which was on the floor underneath the

nurses' station counter /desk area or a cubbyhole to the side.

The tote bag itself was open, and Respondent's personal things

were visible. Ms. Taylor saw the purple pouch and opened it.

The unit secretary had arrived by then and was present when

Ms. Taylor opened the purple bag. Respondent was not present;

she had gone down one of the patient hallways.

18. After seeing for herself that what Ms. Monroe said she

saw Respondent put into her purple pouch was in the purple pouch,

Ms. Taylor called the night shift house supervisor, identified

only as Ronette, who reported that she was going to call the

director of the unit and have her come to the floor. Shortly

thereafter, Mary Kay Butterworth , who had just arrived for her

first day on the job as director of the Two North unit, and Linda

Munier, the day shift house supervisor, met Ms. Taylor and were

briefed. They notified Ann Pasik, the risk manager. Ms. Taylor

spoke with Ms. Pasik, and info rmed her that Respondent was still

on the floor.

19. Respondent testified that Ms. Butterfield came to her

and told her to go to human resources after she was done with her

charting. Respondent finished her charting, got her tote bag,

and went to human resources where she waited in another

employee's presence for two hours. Ms. Pasik, Ms. Butterfield,

and the pharmacy director, Joe Pietranton, arrived in human

resources. They asked Respondent if they could search her bag,

and she consented .

20. The ho spital's Chief Nursing Officer, Dawn Beljin,

explained that pursuant to standard hospital procedure, when

there is an allegation of drug diversion by a nurse, she and the

pharmacy director have to be notified. Mr. Pietranton was

notified upon his arrival that morning, and then he, Ms. Pasik,

and Ms. Butterfield went to Ms. Beljin's office to inform her of

the allegation. Ms. Beljin recalled that this occurred right

before 7:30 a.m., as she had a 7:30 a.m. meeting that she had to

attend. Ms. Beljin instru cted the three others to investigate.

21. Ms. Pasik was not a witness at the hearing. The other

two investigators, Ms. Butterworth and Mr. Pietranton, testified

consistently that the search of Respondent's tote bag yielded the

purple pouch (described by Mr. Pietranton as a purple pencil bag

or cosmetic bag), among other personal items. They opened the

purple pouch, and found glass vials of medications, a syringe,

and two needles, all in their original unopened packaging or

containers.

22. Mr. Pietranton took pictures of the contents, and then

secured the contents in a tamper - proof security/evidence bag,

labelled by Mr. Pietranton and locked in the pharmacy vault. The

contents of the purple pouch were: three vials of morphine, four

milligrams each; five ampules of hydromorphone (Dilaudid), one

milligram each; two needles (a BD safety guide 23 - gauge needle

and a BD blunt - fill 18 - gauge needle); and one BD three - milliliter

syringe. Both types of narcotics found in Respondent's purple

pouch are controlled s ubstances pursuant to chapter 893, Florida

Statutes.

23. Respondent did not visibly or audibly react to the

discovery of the narcotics and supplies in her purple pouch.

Respondent said that she was asked by the hospital personnel how

the contents got th ere, and she told them she did not know. She

did not claim to have a valid prescription for either controlled

substance, nor did she suggest she had any legitimate purpose for

possessing those drugs. Respondent's explanation for having no

reaction to the discovery of drugs in her purple pouch was that

she was in shock. She added that she was also brought up that

way: "you don't show emotions." (Tr. 164). 4 /

24. In the hearing, by way of opening statement and in

argument, counsel for Respondent sugges ted the possibility that

the drugs were planted in Respondent's tote bag, because the bag

was visible and accessible to anyone in the vicinity of the

nurses' station , and hinted that testimony to be offered by

Respondent's character witness about the relat ionship between

Respondent and Ms. Monroe might suggest that Ms. Monroe had a

motive for having planted drugs on Respondent. Nothing ever came

of this prediction. Instead, counsel for Respondent seemed

surprised to elicit testimony from the character wit ness,

Ms. White, that Respondent and Ms. Monroe were friends at work

and outside of work, going out together and intera cting on social

media. Ms. Whit e volunteered even more detail, saying that if

Ms. Monroe needed something, Respondent would bring it in for

her, and if Respondent needed something, Ms. Monroe would bring

it in for Respondent. When Respondent's counsel asked Ms. White

if she ever witnessed any odd behavior between Respondent and

Ms. Monroe, Ms. White not only denied that she had, but went on

to volunteer that "everything was copacetic. . . . There was

nothing rude or anything. Everybody was working together to get

things done. So there was no grudges or any anger or

anything[.]" (Tr. 155).

25. There was no evidence, by way of Ms. Whi te's testimony

or otherwise, of any ill will between Respondent and Ms. Monroe,

any grudge held by Ms. Monroe against Respondent, or any other

evidence from which one could infer a motive on Ms. Monroe's part

to plant drugs on Respondent and fabricate her eyewitness

testimony. All of the credible evidence was to the contrary.

Ms. Monroe was not joyful in sharing her eyewitness account that

implicated Respondent. In response to questions by Respondent's

counsel, Ms. Monroe said that she was friends with R espondent and

that they socialized away from work. Ms. Monroe did not seize

the opportunity to throw Respondent under the proverbial bus when

asked by Respondent's counsel if she believed that Respondent

would steal drugs. Instead, she offered the follow ing credible

response: "I don't know how to answer that. I know what I saw

goes against every grain of what I wanted to believe. I believe

what I saw. I believe that I saw her put drugs of some sort in

her personal shoulder bag." (Tr. 61). 5 /

26. Res pondent was informed that she had to undergo a drug

test, in accordance with hospital policy. She was taken by an

employee health nurse, Bridgette, for a urine drug screen, which

was conducted after Respondent signed the consent. (Under

hospital policy, if Respondent had refused, she would have been

immediately terminated). After the drug test, Bridgette escorted

Respondent out of the building. Respondent did not go back to

work while the hospital completed its investigation.

27. As part of the investi gation, Mr. Pietranton researched

the records of the hospital's orders of morphine and

hydromorphone and records of the hospital's inventory. The

parties stipulated that the hydromorphone ampules and morphine

vials found in Respondent's purple pouch "were identified by

their lot numbers and belonged to the hospital inventory."

Jt. Pre - hearing Stip. at 7, ¶ 8.

28. Mr. Pietranton ran reports on Respondent's activity

with respect to morphine vials and hydromorphone ampules that

were removed from the two Ac uDose machines in the Two North med

room during the night shift in question and for a portion of the

prior night shift (the reports, in evidence, detail the activity

beginning at midnight on September 28, 2017).

29. Mr. Pietranton described the protocol s for withdrawing

these controlled substances during the night shift after the

pharmacy is closed. If there is a physician order prescribing

specific doses at certain intervals or as needed, then the

physician order is put in the system and a nurse can ac cess the

prescribed medication. The AcuDose machines are stocked with an

inventory of medication contained in multiple trays. The nurse

inputs information calling up a specific physician prescription

for a specific patient and the AcuDose machine will un lock only

the tray that has the prescribed medication. F or narcotics such

as the two at issue, the stock in further secured in individual

locked pockets and a lighted trail will point the nurse to the

individual pocket containing the vial or ampule that m atches the

prescription. When there are physician orders for medication in

the system, a nurse can withdraw medication from the AcuDose

machine without having a second nurse witness the withdrawal.

The records show that all of Respondent's withdrawals of morphine

and hydromorphone on September 28 and 29, 201 7 , were authorized

by a physician's order, so no second nurse was required to

witness the withdrawals.

30. When the prescribed dose of liquid medication in a

physician order is less than the content s of the vial or ampule,

hospital protocol is that the nurse withdrawing the vial or

ampule must "waste" the excess amount (over the prescribed

amount), and a second nurse authorized to use the AcuDose machine

must input the passcode and fingerprint to ind icate the second

nurse witnessed the wasting of the excess medication. The liquid

medication is "wasted" into absorbent towels, or, in September

2017, nurses could also waste medication into the med room sink.

31. Mr. Pietranton conducted an audit that t racked and

compared the following: Respondent's withdrawals of morphine and

hydromorphone on September 28 and 29, 2017; physician orders in

the system that authorized morphine and hydromorphone to be

administered to the patients identified in each of Resp ondent's

withdrawals of that medication; records reporting wasted amounts

exceeding the physician - prescribed amounts; and records prepared

by Respondent to report having administered morphine and

hydromorphone to patients Respondent was caring for those ni ghts.

32. Mr. Pietranton concluded there were no discrepancies in

the amounts of morphine and hydromorphone removed from the

AcuDose machines by Respondent compared to the amounts recorded

as wasted plus the amounts recorded by Respondent as administered

to patients .

33. If a nurse creates records of administering drugs to

his or her patients but does not, in fact, administer those drugs

to the patients, that discrepancy would not be revealed by the

type of audit conducted by Mr. Pietranton. While Resp ondent

pointed out in her PRO that it would be speculative to assume

that this is what happened, i.e., that Respondent did not

actually administer the morphine and hydromorphone in accordance

with the records she created to report administering those

medic ations to patients on September 28 and 29, 2017, the point

is that it is a valid hypothesis that would explain how

Respondent could have secured the vials of morphine and ampules

of hydromorphone belonging to the hospital inventory to put in

her purple pou ch and then in her tote bag, consistent with the

AcuDose records and drug administration records. The records

themselves do not prove that this occurred, although they do

document that Respondent withdrew more than the number of vials

and ampules of the t wo drugs tha t were found in her purple pouch.

The records also document that Respondent withdrew virtually all

of the morphine and hydromorphone from the two Acudose machines

in the Two North med room over t he September 28 to September 29,

2017, night shi ft, as evident from comparing the beginning and

ending inventory counts at each of her withdrawal s . But the

proof that Respondent took vials of morphine and ampules of

hydromorphone, along with supplies, put them in her purple pouch,

and put her purple po uch in her tote bag comes primarily from the

clear, credible eyewitness account by Ms. Monroe and the absence

of any credible evidence refuting or undermining that eyewitness

account.

34. When Mr. Pietranton reported to Ms. Beljin that he

confirmed the na rcotics found in Respondent's purple pouch were

hospital property, Ms. Beljin asked those involved in the

investigation to write up statements while the matter was fresh

in their minds. She also asked Ann Pasik, the risk manager, to

notify the police. No record evidence was offered regarding a

police report or results thereof; as previously noted, Ms. Pasik

did not testify at the hearing.

35. Respondent's drug test results, returned several days

later, were negative. But while a drug test was required under

hospital protocol, the negative results reasonably were not

considered to exonerate Respondent. The negative drug test

results would mean only that Respondent had not taken the drugs

tested within the window of time before the test when the drugs

wo uld be detected in her urine. The significance of the negative

drug test results might be different if the eyewitness account

had been that Respondent was seen injecting herself with a drug,

rather than putting vials and supplies in her purple pouch and

t hen in her tote bag where they were later found. As Ms. Beljin

noted, if the drugs had been successfully taken from the

facility, other things could be done with the drugs (such as

using them later and/or selling them). 6 / Therefore, despite the

negative drug test results, Ms. Beljin recommended that

Respondent be terminated. Her recommendation was accepted and

the hospital notified Respondent approximately one week after the

drugs were found in her purple pouch that she was terminated.

36. Ms. Beljin r eported the drug diversion incident to the

Department, as is her duty as a licensed nurse herself. See

§ 464.018(1)(k), Fla. Stat. The Department conducted an

investigation and on February 6, 2018, issued an Emergency Order,

based on findings of fact and conclusions of law that are

consistent in all material respects to the allegations and

charges in the Administrative Complaint issued on March 7, 2018.

37. The Emergency Order immediately restricted Respondent's

license by prohibiting her from practicin g as a registered nurse

in any setting where she would have access to controlled

substances. No evidence was presented to indicate that

Respondent appealed the Emergency Order, so presumably it has

remained in effect pending the outcome of this proceeding .

CONCLUSIONS OF LAW

38 . DOAH has jurisdiction over the subject matter of this

proceeding and the parties thereto pursuant to section s 120.569

and 120.57(1), Florida Statutes (2019).

39. The Administrative Complaint sets for th allegations

regarding the incident described above, for which the Department

charges Respondent with specified violations and seeks to impose

discipline against Respondent's license .

40. A proceeding to suspend , revoke , or impose other

discipline upon a license is penal in natur e. State ex rel.

Vining v. Fla. Real Estate Comm'n , 281 So. 2d 487, 491 (Fla.

1973). Petitioner therefore bears the burden of proving the

charges against Respondent by clear and convincing evidence, as

the parties acknowledged at the outset of the hearin g. Fox v.

Dep't of Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008) (citing

Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996)).

41. As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight t hat it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

v. Walker , 492 So. 2d 797, 800 ( Fla. 4th DCA 1983)). This burden

of proof may be met where the evidence is in conflict; however,

"it seems to preclude evidence that is ambiguous." Westinghouse

Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988 (Fla. 1st DCA

1991).

42. Disciplinary statu tes and rules " must be construed

strictly, in favor of the one against whom the penalty would be

imposed. " Griffis v. Fish & Wildlife Conser. Comm ' n , 57 So. 3d

929, 931 (Fla. 1st DCA 2011); Munch v. Dep't of Prof' l Reg., Div.

of Real Estate , 592 So. 2d 11 36, 1143 (Fla. 1st DCA 1992);

McClung v. Crim. Just. Stds. & Training Comm ' n , 458 So. 2d 887,

888 (Fla. 5th DCA 1984).

43 . Respondent may not be found guilty of an offense that

was not charged in the Administrative Complaint. See, e.g. ,

Trevisani v. De p ' t of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005)

(administrative complaint charged physician with a failure to

create medical records; proof of a failure to retain medical

records cannot support a finding of guilt). Furthermore, due

process prohibits th e Department from taking disciplinary action

against a licensee based on matters not specifically alleged in

the charging instrument, unless those matters have been tried by

consent. See Delk v. Dep ' t of Prof ' l Reg. , 595 So. 2d 966, 967

(Fla. 5th DCA 1992 ).

44. At issue in Count I is whether Petitioner proved that

Respondent committed unprofessional conduct in violation of

section 464.018(1)(h), by misappropriating drugs and supplies in

violation of rule 64B9 - 8.005(2) (defining "unprofessional

conduct" to include "[m]isappropriating drugs, supplies, or

equipment").

45. The term "misappropriating" is not defined in the

nursing regulatory statutes or rules, and thus, as set forth in

Department precedent, the term should be accorded its common and

ordinary m eaning, which is appropriating or taking wrongly. See

Dep't of Health, Bd. of Nursing v. Fischer , Case No. 12 - 0067PL

(Fla. DOAH Sept. 21, 2012), RO at ¶ 73 (applying ordinary

dictionary definitions of "misappropriating" to mean

appropriating or taking wro ngly); adopted in pertinent part (Fla.

DOH Bd. of Nursing Dec. 17, 2012), FO at 5, ¶ 22 (rejecting

exception to use of ordinary definitions of "misappropriate");

and FO at 7 (adopting recommended paragraph 73).

46. Based on the Findings of Fact above, Pe titioner proved

by clear and convincing evidence that Respondent wrongly

appropriated vials of morphine, ampules of hydromorphone, and

supplies (two needles and one syringe). She may have initially

taken the medication out of the AcuDose machines for the

ostensible authorized purpose of administering the medicine to

patients pursuant to physician orders allowing her to do so.

However, the appropriation of those drugs turned into

misappropriation when Respondent brought her own purple pouch

into the med ro om for no legitimate purpose (previously having

emptied the pouch of the blood pressure cuff it was designed to

carry and ordinarily contained), and then put the drugs and

supplies in her purple pouch. She then wrongly exercised her

dominion and control o ver the drugs and supplies by putting the

purple pouch filled with these items in her tote bag with the

rest of her personal items, with the intent of leaving the

hospital at the end of her shift with her tote bag, as was her

routine practice. Respondent is guilty of engaging in

unprofessional conduct by misappropriating drugs and supplies, in

violation of section 464.018(1)(h) and rule 64B9 - 8.005(2), as

charged in Count I.

47. In Count II, Respondent is charged with violating

section 464.018(1)(i). Th at statute provides that it is a

violation for a nurse to engage or attempt to engage in the

possession, sale, or distribution of controlled substances as set

forth in chapter 893, for other than legitimate purposes

authorized by chapter 464, part I (the N urse Practice Act).

48. The parties stipulated that hydromorphone and morphine

are controlled substances pursuant to chapter 893. There was no

evidence proving that Respondent put these controlled substances

in her purple pouch for any legitimate purpose . Instead, the

fact that she left the med room and put her purple pouch

containing the controlled substances into her tote bag with her

other personal items shows that she intended to leave the

hospital at the end of her shift with the controlled substanc es

in her tote bag, consistent with her routine practice of

transporting her personal items from and to work in the tote bag.

4 9. Based on the findings above, Petitioner proved clearly

and convincingly that Respondent took actual possession of these

cont rolled substances for illegitimate purposes when she placed

them in her personal purple pouch and then put the purple pouch

in her tote bag that she routinely took from and to work and

intended to leave with that day. Respondent attempted to possess

these controlled substances more than temporarily, but the drugs

were found by hospital personnel in her purple pouch in her tote

bag and the drugs were removed from her possession before she

could leave the premises at the end of her shift.

50. There was no q uestion that the purple pouch belonged to

Respondent, nor was there any question that the tote bag in which

the purple pouch was found, with the controlled substances

inside, was also Respondent's. Nor was there any dispute that

Respondent's routine pract ice was to bring personal items to work

in the tote bag, and leave after her shift with her tote bag.

51. Respondent argued at length in her PRO that in order to

find that Respondent possessed or attempted to possess the drugs,

it would be necessary to f ind that Respondent was in constructive

possession for the whole shift of the tote bag and its contents,

because the tote bag was left in an area that was accessible to

at least a few others, and also because at other times (not that

night), Respondent had given permission to others to go into her

tote bag to get items in there, such as drinks she brought to

work. Respondent's argument is not persuasive. Respondent

failed to directly refute Ms. Monroe's clear and credible

eyewitness account. Respondent d id not explain why the blood

pressure cuff that the purple pouch was designed to and routinely

did carry was taken out of the purple pouch, or why Respondent

still brought the cuff - less purple pouch to work in the tote bag

that night. Respondent did not d eny that she took her purple

pouch into the med room. Respondent did not deny that she put

medication vials into the purple pouch, or that she then put the

purple pouch in her tote bag. Respondent's general denial that

she did not take the drugs was not credible, and was insufficient

to overcome the lack of explanation for these specific matters,

and the lack of evidence directly refuting Ms. Monroe's

testimony. Ms. Monroe's clear, convincing, and unrefuted

eyewitness account establishes the violation, a nd is not

undermined by Respondent's point that she did not watch over her

tote bag for whatever time remained in the night shift. The

"constructive possession" cases discussed by Respondent, largely

in the criminal context with its heightened burden of p roof, are

all inapposite. None involved circumstances analogous to those

here, where clear credible eyewitness testimony establishes that

Respondent put drug vials in the receptacle (her personal purple

pouch), which she then put in her tote bag, where th e drugs were

found. Respondent is guilty of engaging or attempting to engage

in possession of controlled substances for an illegitimate

purpose, as charged in Count II.

52. The remaining issue for determination is the

appropriate penalty for the proven violations. Penalties in a

licensure discipline case may not exceed those in effect at the

time of the violations. Willner v. Dep't of Prof'l Reg., Bd. of

Med . , 563 So. 2d 805, 806 (Fla. 1st DCA 1990). Thus, as noted,

the penalty provisions set forth be low are those in effect in

September 2017.

53. Section 464.018(2) provides that the Board may impose

any of the penalties in section 456.072(2), Florida Statutes,

against a licensee found guilty of violating any provisions in

section 464.018(1). These pe nalties include license suspension

or permanent revocation, probation, practice restrictions,

administrative fine, reprimand, letter of concern, corrective

action, and/or remedial education. See § 456.072(2), Fla. Stat.

54. Section 464.018(5) requires th e Board to promulgate a

rule establishing "guidelines for the disposition of disciplinary

cases involving specific types of violations." Accord § 456.079,

Fla. Stat. The appropriate penalties for the proven violations in this case must be consistent with the disciplinary guidelines

prescribed by rule in effect at the time of the violations. See

Parrot Head s , Inc. v. Dep't of Bus. & Prof'l Reg. , 741 So. 2d

1231, 1233 - 1234 (Fla. 5th DCA 1999).

55. Rule 64B9 - 8.006 contains the Board's penalty

guidelines. Paragraph (3)(f) of the rule contains the guideline

for discipline for a violation of section 464.018(1)(h) through a

violation of rule 64B9 - 8.005(2). For a first offense, the

penalty guideline ranges from a minimum of a reprimand, a $250

fine, and contin uing education, to a maximum of a $500 fine and

suspension with evaluation by the Intervention Project for Nurses

(IPN) or probation. For a first offense violation of section

464.018(1)(i), rule 64B9 - 8.006(3)(g) provides for discipline

ranging from a mini mum of a $250 fine, suspension, and IPN

evaluation, to a maximum of a $500 fine and suspension. There

was no evidence of prior offenses by Respondent; Petitioner

concedes as much by proposing penalties under the "first offense"

rule provisions.

56. Rule 64B9 - 8.006(5) authorizes the Board to deviate from

the foregoing guidelines upon proof by clear and convincing

evidence in the hearing record of aggravating or mitigating

circumstances. Neither party offered evidence or argument in

their PROs specifically addressing the mitigating and aggravating

circumstances in this rule. While Respondent previewed her

intent to submit evidence regarding mitigating circumstances in

her Answer to Administrative Complaint, no such evidence was

offered at hearing and Respo ndent did not argue in her PRO for

deviation from the penalty guidelines. Having reviewed the

mitigating and aggravating circumstances in the Board's rule, the

undersigned concludes there is no clear and convincing evidence

warranting deviation from the r ule's penalty guidelines.

57. Petitioner's PRO takes the position that the

appropriate discipline in this case is the minimum first - offense

penalty guidelines for both violations, added together. It is

noted that by adding together the minimum penalties from each

violation, the combined penalty is still within the first - offense

penalty range for either violation alone. Petitioner's position

regarding the appropriate penalty to be imposed in this case is

accepted as reasonable.

58. Section 456.072(4) p rovides that in addition to any

other discipline imposed for a violation of a practice act, the

Board shall assess costs related to the investigation and

prosecution of the case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

L aw, it is RECOMMENDED that the Department of Health, Board of

Nursing enter a final order finding that Janine Marie Leonard,

R.N., violated section 464.018(1)(h) through a violation of rule

64B9 - 8.005(2), and that Janine Marie Leonard, R.N. violated

sectio n 464.018(1)(i); and for those violations, imposing the

following discipline: license suspension for an indefinite

period pending satisfactory completion of an IPN evaluation and

any recommended treatment; a $500 administrative fine; such

required continu ing education as the Board deems appropriate; and

costs of investigation and prosecution.

DONE AND ENTERED this 31st day of January , 2020 , in

Tallahassee, Leon County, Florida.

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of January , 2020 .

ENDNOTE S

1/ Unless otherwise noted, references to Florida Statutes are to

the 2017 codification, and references to rules are to the

versions in effect at the time of the alleged incident on

September 28 and 29, 2017.

2 / Petition er's Exhibit 1, a certified copy of Respondent's

licensure file, was admitted primarily for the limited purpose of

documenting Respondent's licensure file. Not subject to that

limitation is the document at pages 75 through 82 of the

licensure file: an Or der of Emergency Restriction of License

(Emergency Order), issued against Respondent by the Department on

February 6, 2018, based on the same alleged incident at issue in

this case. The parties agreed that the Emergency Order is

relevant to this proceedin g and it is admitted without

limitation.

3 / By agreeing to an extended deadline for post - hearing

submissions beyond ten days after the filing of the transcript,

the parties waived the 30 - day time period for filing the

Recommended Order. See Fla. Admin. Code R. 28 - 106.216.

4 / Respondent offered the testimony of Crystal White, C.N.A., a

certified nurse assistant who had worked on the night shift with

Respondent and Ms. Monroe in the past, but who had been on

medical leave for a total of six months, spann ing the timeframe

of the incident. She had no personal knowledge of what happened

during that night shift, but was offered as a "character witness"

to attest to Respondent's good character. In contrast to

Respondent's testimony about her upbringing, Ms. White testified

that Respondent's "culture" and "background" caused her to be

loud and to get hysterical: "She gets, like, hysterical.

Because I know -- you know, from culture or whatever. . . .

[S]he's loud -- I don't know the proper words for it -- because of

her background . . . that was just her culture because she's loud

or whatever." (Tr. 156 - 157).

5 / Respondent pointed to a few inconsistencies in Ms. Monroe's

testimony, not regarding her eyewitness account of Respondent

putting medication vials and s upplies in her purple pouch and

then putting her purple pouch in her tote bag, but regarding

minor, collateral details. The material facts attested to by

Ms. Monroe were clear, consistent, and credible. Any minor

discrepancies or questions raised by Resp ondent fail to undermine

Ms. Monroe's unrebutted eyewitness account. For example,

Ms. Monroe testified that she reported what she observed to the

Two North night shift charge nurse, identified as Janet Finger,

who was Ms. Monroe's direct supervisor. Resp ondent testified

that the night shift charge nurse at that time was Mira Manyak,

replacing Janet Finger who had moved to Tennessee. There is no

credible evidence to prove whether Janet Finger or Mira Manyak

w as on duty for the September 28 to September 29 , 2017, night

shift. Respondent admitted that sometimes she and Ms. Monroe

were the only two nurses staffing the Two North night shift,

because sometimes they were short - staffed.

Respondent also criticized Ms. Monroe for not recalling that

she reported the drug diversion incident to Ms. Taylor, who was

the Two North day shift charge nurse, when Ms. Taylor arrived at

around 6:00 or 6:30 a.m. on September 29, 2017. Perhaps

Ms. Monroe mistakenly recalled reporting the incident to the

night shift charge nu rse when she actually reported it to the day

shift charge nurse. Respondent argued it is unlikely that

Ms. Monroe would wait hours after observing drug diversion to

report it to her supervisor, but there is no proof as to exactly

when during the night shi ft the incident occurred, whether it was

hours before Ms. Monroe reported the incident to the day shift

charge nurse, or whether there was even a Two North night shift

charge nurse working that night to report to. Regardless, even

if Ms. Monroe did not im mediately report the incident to her

supervising charge nurse or to a higher authority (such as the

night shift house supervisor), that would not undermine her

eyewitness account. The fact remains that Ms. Monroe reported

the incident before her shift was over, while Respondent was

still on the floor, and while Respondent's tote bag , w ith the

purple pouch inside , was still in place where Respondent kept it.

6 / Respondent's PRO proposed a finding that Respondent "has no

reason to attempt to steal medicati ons since she does not have a

drug problem and she is not a drug dealer." (PRO at 13, ¶ 38).

While Respondent did testify, when asked, that she does not have

a drug problem and is not a drug dealer, Respondent was not asked

and did not volunteer whether she had a drug problem or was a

drug dealer in September 2017. The present tense of this line of

inquiry makes the testimony and proposed finding irrelevant.

Moreover, at least since February 2018, Respondent has been

prohibited from working as a registe red nurse in a place where

controlled substances are accessible, so she has not had the

opportunity that was available to her in September 2017.

COPIES FURNISHED:

Sara A. Bazzigaluppi, Esquire

Chapman Law Group

6841 Energy Court

Sarasota, Florida 34240

(eServed)

Gerald C. Henley, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Kristen M. Summers, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Lauren Ashley Leikam, Esquire

Chapman Law Group

6841 Energy Court

Sarasota, Florida 34240

(eServed)

Kimberly Lauren Marshall, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Wa y , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399

(eServed)

Kathryn Whitson, MSN, RN

Board of Nursing

Department of Healt h

4052 Bald Cypress Way, Bin D - 02

Tallahassee, Florida 32399

Louise Wilhite - St. Laurent, Gen eral Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have t he right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.